Christmas comes early: Casual Loading Offset Regulation 2018 passed

  • 19 Dec 2018
Yesterday, in response to the decision in Workpac v Skene (the Workpac Decision),[1] the Government brought into effect the Fair Work Amendment (Casual Loading Offset) Regulation 2018 (the Regulation).
 
The Workpac Decision
 
The Workpac Decision caused shock waves around the country for employers, as the decision effectively found that in circumstances where employees had been classified and paid as a casual, but should have been classified as a permanent employee, they were entitled to be ‘back-paid’ for paid leave entitlements. Essentially, this resulted in ‘double dipping’, where employees could receive both a casual loading and the paid leave entitlements of permanent employees.
 
So what does the Regulation mean for employers?
 
The Regulation will allow employers to set off any amounts owed to incorrectly classified employees against the casual loading paid, without the need to amend employment agreements and other industrial instruments to permit the set off.
 
When does the Regulation apply?
 
Whilst the Regulation remains operative, the offset applies if the following criteria are satisfied:
 
  1. “a person is employed by an employer on the basis that the person is a casual employee; and
  2. the employer pays the person an amount (the loading amount) that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements during a period (the employment period); and
  3. during all or some of the employment period, the person was in fact an employee other than a casual employee for the purposes of the National Employment Standards; and
  4. the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements.”
 
When is the Regulation operational?
 
The Regulation came into effect, 18 December 2018, and applies to employee employment periods that occurred before, on or after, that date.
 
Warning
 
Employers should note the introduction of the Regulation does not remove the obligation to pay leave entitlements to employees classified as casuals where the casual loading is not clearly identified or marked out (which was the case in the Workpac Decision) so it is important to ensure that this is clearly set out in correspondence, payslips, contracts or relevant industrial instruments.
 
Assistance
 
Visit the Federal Register of Legislation to read the Fair Work Amendment (Casual Loading Offset) Regulations 2018.
 
In the meantime if you employ casuals and would like advice on how to best protect your business we are here to help.

Post by Saasha Greeney and Sarah Jones

Most Popular Articles

Blog

Service of Notices by Registered Post

Where service of a notice is authorised or required by post, unless the contrary intention appears, service will be deemed to be effected at the time when the notice would be delivered in the ordinary course of post: see the various Acts Interpretation acts of the States and Commonwealth.
Blog

Abandonment of employment – some best practice tips

We are regularly asked to advise employers in relation to whether certain circumstances amount to abandonment of employment and, if so, what are the employer’s rights and obligations.
  • 1 Mar 2017

Blog

Medical manslaughter - The Australian Experience

Medical manslaughter has come into the spotlight in the last week following the recent decision in England to deregister a medical practitioner after she was found guilty of manslaughter in 2015.

Subscribe to Our Blog

Keeping you connected, Hicksons regularly publishes articles to keep you up to date on the latest developments. To receive these updates via email, please subscribe below and indicate which areas of law you would like to receive information on.

Top